P.J. Lodola & Sons, Inc.

Plain-English summary

P.J. Lodola & Sons was the electrical subcontractor on a warehouse project
for Lego in Enfield, Connecticut. A 1992 OSHA inspection led to a serious
citation for an uncovered electrical outlet and for trailer stairs with
uneven risers and missing rails, plus a nonserious citation covering a
defective drill, fire extinguishers, a missing no-smoking sign, and a low
electrical conductor. Administrative Law Judge Nancy J. Spies affirmed the
three grouped stairway items as serious, finding uneven risers and absent
stairrails and midrails posed a real fall hazard, and rejected the company's
greater-hazard defense about having to move heavy stairs. She downgraded the
uncovered-outlet item to other-than-serious with no penalty because the
shock risk inside the trailer was remote. She vacated the defective-drill
item because Lodola had inspected the tool under its grounding program and
could not reasonably have known the ground pin was loose. The four remaining
nonserious items were affirmed without penalty. The only monetary penalty
was $600 for the grouped stairway violations.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.405(b)(2), 1926.1052(a)(3), 1926.1052(c)(1), 1926.1052(c)(4), 1926.20(b)(3), 1926.152(d)(4), 1926.152(g)(9), 1926.153(l), and 1926.404(c)(1)(ii)(C).
• Outcome: Mixed. Stairway items 2a/2b/2c affirmed serious ($600 total); outlet item affirmed but reclassified to other-than-serious (no penalty); defective-drill item vacated; four other nonserious items affirmed without penalty.
• Key point: The severity of a violation turns on the likely injury if an accident occurs, and an employer that exercised reasonable diligence in inspecting equipment cannot be charged with a defect it could not have detected.

Full text (OSHRC public release)

```text
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centfe
1120 20th Street, N.W. - 9th Floor
Washington, DC20036-3419

PHONE:
COM (202) 6066100
~W3-1~

            SECRETARY      OF LABOR
                               Complainant,                            OSHRC DOCKET
                     v.                                                NO. 93-0539
            P. J. LODOLA & SONS, INC.,
                               Respondent.


                                 NOTICE OF DOCKETING
                           OF ADMINISTRATIVE L4W JUDGE’S DECISION
                 The Administrative Law Judge’s Report in the above referenced case was
            docketed with the Commission on April 21, 1994. The decision of the Judge
            will become a final order of the Commission on May 23, 1994 unless a
            Commission member directs review of the decision on or before that date. ANY
            PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
            COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
            Any such etition should be received by the Executive Secret       on or before
            May 11, 1!i94 in order to ermit sufficient time for its review.Y ee
            Comrmssion Rule 91, 29 8 .F.R. 2200.91.
               All further pleadings or communications regarding this case shall be
            addressed to:
                                   Executive Secretary
                                   Occupational Safety and Health
                                    Review Commission
                                   1120 20th St. N.W., Suite 980
                                   Washington, D.C. 20036-3419
            Petitioning parties shall also mail a copy to:
                                   Daniel J. Mick, Esq.
                                   Counsel for Regional Trial Liti ation
                                   Office of the Solicitor, U.S. DOgL
                                   Room S4004
                                   200 Constitution Avenue, N.W.
                                   Washington, D.C. 20210
            If a Direction for Review is issued bv the Commission, then the Counsel for
            Regional Trial Litigation will represdnt the Department of Labor. bY Party
            having questions about review nghts may contact the Commission’s Executive
            Secretary or call (202) 606-5400.
                                                   FOR THE COMMISSION


           Date: April 21, 1994

DOCKET NO. 93-0539

NOTICE IS GIVEN TO THE FOLLOUrING:

Daniel J. Mick, w.
Counsel for Re ‘onal Trial Liti ation
Office of the SO%‘citor, U.S. DOf
Room S4004
200 Constitution Ave., N.W.
Washington, DC. 20210

Albert H. Ross, Esq.
Re ‘onal Solicrtor
O&e of the Solicitor U S DOL
One Congress Street, ilth *Floor ~
P.O. Box 8396
Boston, MA 02114

Barrett A. Metzler, President
Northeast Safety Management, Inc.
PO Box 10733
West Hartford, CT 06110

Nancy J. Spies
Admmistrative Law Jud e
Occupational Safety an (BHealth
Review Commission
1365 Peachtree St., N. E.
Suite 240
Atlanta, GA 30309 3119

00109825257:Ol
 UNITED STNES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTHREVIEWCOM~lsSlON
1365 PEACHfREESnwl# N.E.,SUllE240
ATIANTAJXORGIA -3119

 ?WNE:                                                                                     FAX:
 COM(ror) 347497                                                                           cw (404)347411:
 Ffs (404)3474197                                                                          Frs(404)34?4113

SECRETARY OF LABOR,
Complainant,

             v.                                                OSHEtC Docket No.: 93-539

P. J. LODOLA & SONS, INC., ’
Respondent.

Appearances:

    ihtiU)mEDi~EsqUiR
           Office of the Solidtor
           U. S. Departmentof I&or
             Boston, lhdasa~usetts
                    For Complainant

Before: Administrative Law Judge Nancy J. Spies

                                     DECZSION AND ORDER

    On January 20,1993, the Secretary issued two citations to P. J. Lodola and Sons, Inc.,

(Lodola), aIlegingviolations of the Occupational safety and Health Act of 1970 (Act). The
citations resulted from a multi-employer construction inspection conducted fbm September
16 to October 27, 1992, by Occupational Safety and Health Administration (OSHA)
investigator Anthony Fuschillo. The Secretary alleges that LodoIa was in serious violation
of 5 1926.405(b)(2), for failure to cover an electrical outlet box; and of Q 1=.1052(a)(3),
0 1926.1052(c)(l) and $1926.1052(c)(4), for failure to have stairs risers at required heights
and with handrails and mid&. In addition, the Secretazy charges nonserious violations
,
involving failure to tag out a defective driii to have anbapproved fire extinguisher, and to
have conductors more than 15 feet from areas subject to truck traffic. Lodola primarily
apes that the facts do not constitute violations or that compliaxe would result in a @eater
hazard.

      Lociola was the electrical subcontractor for construction of a “palletized” warehouse

for the Lego Corporation in Enfield, Connecticut, at the time of the OSHA inspection
(Tr. 1445, 23).

                              SERIOUS mATION          NO. 1

                Item 1: Alleged violation of 29 CF.R 8 l!M.4OS(b)(2)

      The Secretary asserts that kxiola’s faiiure to cwer an electrical outlet was a serious

violation of 8 1926.405(b)(2). Ibdola admits that the outlet had no f&ceplate, but argues
that a deliirate act would be necessary before an injury could occur. The standard
provides:

      (b)(2): Covers and canopies    l   l In energized installations each outlet box
                                             l




      shall have a cover, faceplate, or fixture canopy.

      Fuschillo observed a three-gang receptacle located in LodoIa’s offi= trailer that did

not have a faceplate covering the outlet. The receptacle was energized and powered a
radio, refrigerator and air conditioner (‘Ike31-32). Employees reg&rly went into the office
trailer and passed by the uncovered outlet. IAdola’s foreman, Wayne Centore, sat within
a band’s reach of the outlet. Centore broke the coverplate about 1 week before the
inspection
(Ed C-3; Tr. 44,215).
L&ola disputes the existence of the hazard. Certainly ihe uncovered outlet box did
not present a readily access~%lehazard. In order for someone to be shocked from the
uncovered outlet box, that person must have contacted either the metal mounting straps or
the connection materials at the side of the outlet receptacle (&IL C-5; Tr. 23, 168, 170).
Simultaneously, in order to become grounded, he or she would have to touch some other
conducting material such as the outlet box itself or the space heater mounted on the wall
(Tr. 33.34). Lodola argues that the necessary combination of these occurrences was so
implausl%lethat the hazard did not exist.
 Even if the probability of an electrical shock was low, outlets must be covered to
protect the user from contact with the live electrical parts contained in it (Tr. 166). Wayne
Centore, Lodola’selectrical foreman, impliedly recognized the hazard when he admitted that
the condition should have been corrected; that it would have been corrected if it had
occurred on the jobsite proper; and that replacing the cover simply “fell between the cracks”
(Tr. 217). Further, the existence of a standard presumes that a hazard is present when the
terms of the standard are not met, See Wtight & tip, 10 BNA OSHC 1108,198l CcH
OSHD 125,728 (NO. 760256, 1981). The employer is not free to unilaterally disre@ the
existence of a federal standard merely because the employer disagrees with its ecaCy.
Finally, Lodola’s argument thatlthe experienced electricians who used its trailer would know
enough to avoid the hazed is rejected. Accidents, such as Centore’s in breaking the
coverplate in the first instance, regularly occur even to knowledgeable individuals Ft. 108,
215). The standard has been violated.
The degree of the hazard is relevant to determining the proper characterization and
appropriate penalty of a violation. See AeR O’HO~OCo.9 14 BNA- OSHC 2004,191 CCH
OSHD 1 29,223 (NO. 85-369, 1991). TO establish that a violation is “sc~~OUUS”
under
Section 17(k) of the Act, there must be a “substantial probability” that death or serious
physical harm could result from the violative conditions. This language refers not to the
likelihood of an accident occurring, but rather to the severity of an injury if an accident were
to WCuTe Bethhem Steel Corp. V. OSHRC 607 Fe2d 1069 (3rd Cir. 1979). Atthough the
Secretary alleges the violation is serious, the classification is not warranted. The outlet was
inside the trailer, not subject to the elements. Since employees were exposed to the hazard .
only while in the trailer, there was no posslaility that a shock could startle and result in a fall
from heights. The outlet was not used to provide power for a variety of tools, as would have
been the case had the outlet been located at the building under construction. In fact, the
appliances that were plugged into the outlet had never been unplugged from it (T’r.217).
These facts not only affect the probability of an accident occurring, they also lessen the
severity of the potential injury. Since the probability of serious injury caused by the
uncovered outlet was remote and speculative, the violation is properly classified as “other

                                                       3

than serious.” See Ham&n f&we, 16 BNA OSHC 1073, 93 CCH OSHD q 30,034
(NO. Ss-1720, 1993).
NOpenalty is assessed for the “other than serious” violation.

               Item 2a: Alleged vioIation of 29 CF.R 8 1926.1052(a)(3)

     The Secretuy asserts in Item 2a that the riser height of the storage trailer was not

uniform a~ required by 6 1926.1052(a)(3) which provides:

     Fber height and tread depth shall be uniform within each flight of stairs,
     including any foundation structure used as one or more treads of the stairs.
     Variations in riser height or tread depth shall not be over %-inch (0.6 cm) in
     any stainmy system.      ’

    The storage trailer had 7 risers, counting from the ground to the trailer. The total

height from ground to the trailer floor was 4 feet (Tre 49). Fusehill measured the individual
riser heights in ascending order as: 9% inches; 6 inches; 5% inch- 5 13/16 inches;
51 inches; 51 inches; and 11?4inches from the last step onto the trailer floor (Tr. 48). The
standard prohibits a variation in riser heights of more than % inch. Here, the variation was
almost 6 inches between the last step into the trailer and the third step. Even if the last step
is not considered to be a riser, an almost 4 inch difference existed between the first step
from the ground and third steps. The second and third “middle steps” also varied in height
by more &I 4/r inehe The steps were in plain sight and, at a minimum, Mola had
constructive knowledge of the variation of the risers. The Secretary has established the
ViOlatiOn.

              Item 2b= Alleged violation of 29 C.F.R 0 1926.1052(c)(l);
              Item 2c= Alleged violation of 29 C.F.R 0 1926.1052(c)(4)

    The Secretary maintains that the stainvays for the storage and office trailers were

defective since they lacked either the necessary stairrails or midrails in violation of
00 1926.1052(C)(l)and (C)(4). Lodola argues that it was not practical to have railings on
both open sides of the storage trailer, It disputes whether railings were required at the
office trailer. ‘JYhestandards require:
 9 1926.1052(c)(l): &&ways having four or more risers or rising more than
30 inches, whichever is less, shall be equipped with: (1) at least one handrail;
and (2) one stati system along each unprotected side or edge.

   “Stairrail system”is defined by 5 1926.1050(b) as “a vertical barrier erected along the

unprotected sides and edges of a stairway to prevent employees Tom falling. ..” l

   6 1926.1052(c)(4): Midrails, screens, mesh intermediate vertical members, or
   equivalent intermediate structural members, shall be provided between the top
   rail of the stairAl system and the stairway steps.

   As stated, the stairway into the storage trailer had seven risers and rose 4 feet

(Tr. 49). The stairway of Lodola’s office trailer had four risers, counting the top step into
the trailer and had a total rise of 35 inches (Tr. 85-86). The requirements of the standards
apply. The stairway of the storage trailer had one railing on its right side. This railing had
no midrail. There was no railing on the open left side of the storage trailer. The office
trailer had railings, but these had no mid-rails or other acceptable alternative protection.
Employees regularly used both stairways. Lodola had knowledge of the conditions because
the obviously variable stairs were in plain sight at its own trailers (Tr. 124). The secretary
has established the violation.

                              Greater Hazard Defense

   The burden now shifts to Lodola to establish its asserted defense that use of side

railings would have created a greater hazard. This defense is predicated upon the fact that
the doors of the storage trailer door swung from the side. L,odola argues that if both open
sides of the stairway had railings, the stairway would have to be moved each time the trailer
doors were opened or &sed. The stairs weighed more than 200 pounds. Lodola anticipates
that a potential fall from the stairway was a lesser hazard than that involved in physically
moving stairs by hand pr. 196-197). It also asserts that assigning an employee to the task
woukl create a financial burden for it.
Any employer who believes that compliance will create a greater hazard than that
addressed by the standard must establish that: (1) the hazards of compliance are greater
than the hazards of noncompliance; (2) alternative means of protection are unavailable; and

                                          5

(3) a variance was unavailable or inappropriate. E& Seibel ikfbdem Manufacwg &

WeldingCorp., 15 BNA OSHC 1218,122&1991 CCH 09-D 129,442, p. 39681(No. 88-821,
1991); Lad@ Grain Co., 13 BNA OSHC 1084, 1088, 1986-87 CCH OS-ID 1 27,814,
pp. 36,39798 (No. 81-984, 1987). Lodola has not met any of the elements of the defense.
Lodola, in effect, argues that placing railings to protect falls dram the storage trailer
would subsequently create a w hazard, the physical strain of moving the stairs. The
greater hazard defense is limited to instances where the specific hazard would be heightened
by compliance. Rzw KM& Inc., 4 BNA OSHC 1758, 1976-77 CCH OSHD 1 21,152
(No. 11171, 1978). It is not met by the employer’s unsubstantiated opinion ahut the
creation of a new hazard. Loddla did not address why it could not utilize removable railings,
a landing platform or, if necessary, some mechanical means to move the stairway. Further,
it presented no evidence that it had attempted any type of alternative protection for
employees or had applied for a variance from the standard. Lodola f&d to establish a
defense to the violation.

                     Classification and penalty of 2a, 2b, and 2c

    The hazard addressed by having railings on open sides is tripping or falling fkom the

stairway. Likewise, midrails serve the purpose of providing a means to arrest a fBu
Although the fall distance from either stairway was 4 feet or less, such an accident could be
expected to result in a sprain or even a broken bone. The hazard at the storage trailer was
enhanced because employees sometimes car&d equipment in and out of the trailer. The
prohibition against exessive variations in riser height is not merely a technical requirement.
Discrepancies in riser height disrupt the body’s rhythm. They can cause one to become off-
balanced, misstep, trip or fall, especially when hurrying or carrying objects. Further, the
expected momentum of such a fall from an upright position cannot be ignored. See Awin
Bldg. Co. v. OSHRC 647 F.2d 1063, 1967 (10th Cir. 1981) (employer cannot rely on the
“possibility of a fortunate fti”). The substantially probable result of these violations is a
sprain or broken bone, which is serious bodily harm- Grouped items 2a, 2b, and 2c are
affirmed as serious violations.

                                           6

The Commission is the final arbiter of penalties in alI contested cases. SecrctrrryV.
OSHRC and Intrstate Glass Co., 487 F.2d 438 (8th Cir. 1973). It must give “due
consideration” to the size of the employer’s business, the gravity of the violation, the good
faith of the employer, and the history of previous violations in determining the appropriate
penalty. IA. Jones tZbm co,, 15 BNA OSHC 2201,2213-14,1993 CCH OSHD 129,964,
p. 41,032 (No. 87-2059,1993). These factors are not IIC~ accorded equal weight. The
gravity of the violation is the primary element in the penalty assessment. 7%@ Indus,
15 BNA OSHC 1481,1483,X92 c!CH OSHD 7 29,582, p. 40,033 (No. 8&691,19%Z).
Lx>dolahad eighteen employees on site and employed 50 in its corn- (Tr. 39,
209). The majority of the on-site employees were exposed to the hazard of falls from either
or both stairs (Tr. 41,44). Considerations of good faith include the fact that Lodola had m
ongoing safety program. It did not have a history of previous serious violations of the Act
(‘I?. 39). The likelihood of injury as well as the fact that Lodola had some but not all of the
required handrails were considered as mitigating fation, A total penalty of$600 is m
for the three items.

                           “STEER” CITATION NO. 2

              Item 1: Alleged violation of 29 C.F.R 8 l926.2O(b)(3)

   The alleged violation of # 1926.20(b)(3) is based on Lodola’s alleged failure to tag

a defective drill which was available for use by Lodola’s employees. Lodola argues that it
could not have known of the alleged violation. The standard provides:

  The use of any machinery, tool, material, or equipment which is not in
  compliance with any applicable requirement of this part is prohiiited. Such
  machine, tool, material, or equipment shall either be identified as u&e by
  tagging or locking the controls to render them inoperable or shall be physically
  removed from its place of operation.

  Part 1926 requires that the tool be grounded. As part of Lodola’s assured equipment

grounding conductor (aegc) program, Lodola’s employees inspected equipment weekly, more
often that the aegc related standard required (Tr. 198). Compliance offict~ FUSMIO
inspected the Milwaukee drill to determine if it was properv grounded. The tool was not

                                          7

in use and was in the tool boxe By moving the grounding pin back and forth, Fuschillo found
that the grounding pin was loose and thus that the drill had only an intermittent ground
(Tr. 5849). Fuschillo recommended the citation because he feared the drill could be used
while un~oudd. He acknowledged that the tml could also be properly grounded
depending upon the position of the grounding pin (Tr. 60). A loose gromding pin presents
the potential for shock or electrocution. The condition should have been immediately
commd when it became known to Lodola. Should Lodola have known of the condition?
In compliance with Lodola’s aegc program the tool had been checked, found to be
functioning properly, and color coded the week prior to the OSHA inspection (Tr. 198).
The Secretary has the burden ‘to prove employer knowledge of a cited condition. This
requirement can be satisfied by a showing that the employer failed to discover the defect in
materials or equipment through the exercise of “reasonable diligence.” See Rzsessed
Systems, Iice, 9 BNA OSHC 1864, 1865, 1981 CCH OS)ID 1 25,358 (NO. 16147, 1981).
Lodola inspected the drill. The fact that the groun@g pin was or became 1oose was nat
obvious from casual observation. There was no proof that the drill had even been used
during the intervening week between Lodola’s tool check and the OSHA inspection (Tr. 137.
138). Lodola exercised the “reasonable diligence”required of an employer in starching for
safety-related defects and had a reasonable basis to believe that the tool was properly
grounded. I&ola lacked the knowledge requisite to establish the violation. The alleged
violation is vacated.

              Item 2: Alleged violation of 29 CF.R 9 1926.152(d)(4)

   The Secretary charges that Lodola violated 8 192&152(d)(4) by failing to have a fire

extinguisher of the capacity required by the standard. Lodola claims that it had available
extinguishers with suf6cient OutpUte The standard requires:

   At least one portable fire extinguisher haying a rating of not less than 20-B
   units shall be provided on all tank trucks or other vehicles used for
   transporting and/or dispensing flammable or combustible liquids.

   At the time Fuschillo saw Lodola’s diesel refueling tank, which was on the back of

a Ford pick-up truck, it was located at the comer of the building under construction

                                           8

(EA. C-10, C-11; Tr. 63). This truck regularly went onto the jobsite, and the tank was used
to refuel Lodola’s portable generators (Tr. 145). The truck bed also canied two five-g&n

fuel containers. Lodola kept two fire extinguishers behind the seat in the pickup truck.
&ch extinguisher
-2 _-J.d
- was rated at S-B:C ’ (Tr. 62-63, 142). Fuschillo opined that two
extinguishers would not meet OSHA’s requirement that the stated output be from one
extinguisher (Tr. 65). Here, however, even combining the capacity of both of Lx!ola’s
extinguishers, they were not the equivalent of one 20 square foot capacity extinguisher.
These were the only extinguishers “provided” for the fuel tank. Lodola suggests that some
other pick-up trucks may also have had extinguishers on them. Such speculation does not
negate the Secretary’s specific ‘evidence of a violation. The violation is asserted to be
nonserious in part because diesel fuel rather than gasoline was being pumped (Tr. 65). An
“other” than serious violation is affkmed without penalty.

                Item 3: Alleged violation of 29 CF.R 9 l926.152(6)(9)

    The SeCretary asserted a violation of 8 1926.152(g)(9) because Lodola Wed to have

“no smoking” signs posted on or near the fuel dispensing pick-up truck (Tr. 67). The
standard specifies that:

    (g) &vice ad reficeltrg arm-           conspicuous and legiile signs prohibiting
    smoking shall be posted.

    It is undisputed that there were no signs posted to prohibit smoking at the place

where fuel was dispensed from Lodola’s Ford pick-up truck. The standard requires that a
sign be conspicuously posted. It is without significance that the two employees who usually .
refueled the equipment did not smoke. On this multi-employer worksite other employees
necessarily had access to the areas where the truck was parked or where refueling was taking
place. All employees should have been notified that smoking in the refueling area was
forbidden. A nonserious violation is affirmed. No penalty is assessed.

’ Fire extinguishers are rated by number and letter. The number designates the number of square fat of fk
it can extinguish. The letter “A” designates an extinguisher that can put out wood, paper, p and like
materials. “B” designates a rating for petroleum fires; UC for ekctri~ fires;and “Dwfor flammable metals
such as aluminum and magnesium(‘IY.63,64).

                                               9

Item 4: Alleged violation of 29 CF.R 5 1926.153(l)

   The secretary charges a violation of 6 1926.153(l)which provides:

   8 1926153 Liquetkd petroleum gas (1) Storage locations shall be provided
   with at least one approved portable fire extinguisher having a rating of not
   less than 2@B:C.

   Lodola stored liquid propane gas in a fenced area some distance behind its office

trailer. The area in which the gas was stored had long dry grass. Lodola had a fire
extinguisher placed near the storage location, but it was rated at only l@ B:C and not at the
minimally required 20- B:C rating
1 (E&s. C-2, C-12; Tr. 68, 72). There were no other
extinguishers within 75 feet of the storage area (Tr. 146). Although Centore testified that
a fire extinguisher rated 75.B:C could be found at another location on the jobsite, he did not
argue that this would affect a violation occurring at the propane storage area (I’r. 200). The
Secretary has established a nonserious violation. No penalty is assessed

          Item 5: Alleged violation of 29 CF’.R 0 1926.404(c)(l)(ii)(c)

   Aviolation of 8 192&404(c)(l)(ii)(C) is charged because an electrical conductor which

crossed over a road or a ccessway, arguably “subject to truck traf%,” w&sless than 15 feet
above the ground. Whether placement of the conductor at this height was a violation
depends upon what type of traffic the roadway was “subject to.” Lodola contends the
roadway was used only for residential traffic and was thus governed by
0 1926.404(c)(l)(ii)(B). The standards provide:

  0 1926.404@)(1) Ouaide conducton and larn~-(ii)         Clearance from ground.**

          (B):    12 feet - over areas subject to vehicular traffic other than truck traffic.

  l   *   (C):    15 feet - over areas other than those specified in paragraph
                  (c)(l)@)@) of this section that are subject to truck traffic.

  **      (D):    18 feet - over public streets, alleys, roads & driveways.




                                          10

Subject to truck trafac

   The accesswaypresented a direct route from a public road into the office trailer arta

at the jobsite (Exh. C-2). It appeared to be a fkequenq travdkd road (Exh. C-15).
Fuschillo characterized the road as a service entrance, although it was not the primary
service entrance vr. 80). Fuschillo’sspeculation
that truck traffic would have brought and
taken away trailers for the various subcontractors is not sufficient to meet the Secretary%
burden. However, Fuschillo observed a UPS truck on the roadway, although it stopped
about 12 inches short of passing under the conductor. Lattr in the investigation, but afttr
the conductor had been raised, he observed a second UPS truck drive under the wires
(Tr. 81). This latter evidence is not a basis for a violation, but it supports that the earlier
observation of a truck was not a mere aberration. Centore stated that the UPS truck
Fuschillo observed was also the first he had seen. However, ia fbther describing how the
accessway was made, Centore explained:

   And, then delivery people - UPS, Federal Express, all of them - will not get
   out of a truck if it means their sneakers are going to get dirty. So, they drive
   wherever they want (Tr. 201).

It was not unexpected that a direct accessway from street to the jobsite trailers would be
used by delivery trucks. The standard requires only that the roadway be “subject to truck
traffic.” This is a lesser measure than the “designed for” or “primarily used by” definition
suggested by Lodola. Observation by the compliance officer and circumstances such as the
road’s location between a public road and a large construction site establish that the
accessway was “subject to truck MC.”

                         Noncompliance with the standard

   The conductor brought electricity from the main pole at the street to a pole near

Lodola’s office trailer. It serviced the trailer and the security lights (Tr. 76). Fuschillo
verified that the conductor was energized. With the assistance of Centore, Fuschillo
measured the wire as it crossed the roadway and found it to be 12 feet, 4 inches above the
ground (Tr. 82-83). Employees of IAola or other employers had access to the hazard of
potentially hitting and breaking an energized conductor or contactinga fallen conductor or

                                         11

energized vehicle. Since Lodola was the electrical contractor, since the conductor serviced
its trailer, and since Centore raised it during the inspection, Lodola may be considered both
the creating and controlling employer. See Flint Engineering & Cons. Co., 15 BNA
OSHC 2052, 1991-93 CCH OSHD ll 29,923 (No. 90-2873, 1992); An&g-Johnson
. Co.,
4 BNA OSHC 1193, 1199, 1975-76 CCH OSHD ll 20,690, p. 24,784 (No. 3694, 1976)
(consolidated cases). The violation was in plain sight and Lodola had constructive
knowledge of the violation. The violation is affirmed as nonserious. No penalty is assessed.

                 FINDINGS OF FACT AND CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Federal Rule of Civil Procedure 52(a).

                                      ORDER

   Based on the foregoing decision, it is ORDERED:
   (1)    Serious citation No. 1, item 1, alleging a violation of 5 1926.405(b)(2) is

affirmed as an “other-than-serious violation” without penalty; -
(2) Serious citation No. 1, items 2a, 2b and 2c alleging violations of
00 1926.1052(a)(3), 1926.1052(c)(l) and 1926.1052(c)(4) is affirmed and a total penalty in
the amount of $600.00 is assessed;
(3) “Other-than-serious” citation No. 2, item 1, alleging a violation of
0 1926.20(b)(3) is vacated; and
0 “Other-than-serious” citation No. 2, items 2, 3, 4 and 5 alleging violations of
88 1926.152(d)(4), 1926.152(g)(9), 1926.153(l), 1926.404(c)(l)(ii)(C) are affirmed without
penalty.
/s/ Nancv J. Spies
NANCY J. SPIES
Judge

Date: April 11, 1994

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